SNP MSPs quizzed Humza Yousaf on plans to introduce juryless trials for rape cases after the proposed reforms have come under fire from judges and defence lawyers.

Christine Grahame was the first to put her party leader on the spot at First Minister's Questions today over the controversial changes which could see a single judge preside over trials for rape and attempted rape during a pilot scheme.

Ms Grahame raised concerns, first reported by the Herald on Sunday last weekend, made by a group of judges in a submission by the judiciary to a Holyrood committee examining the planned measures and asked Mr Yousaf for his response.

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The 36 senior judges were divided on their opinion about the pilot,though they did not say how many backed the policy and how many were against.

Defence lawyers earlier this year threatened to boycott the pilot arguing it would not give the accused a right to a fair trial, though many groups supporting victims of sexual assault support the trial, first suggested by Lady Dorrian in her review of the management of sexual offences cases in 2021 which focused on how to improve the experience of victims while protecting the rights of the accused.

Supporters of the pilot scheme for a single judge trial point to the low conviction rates for serious sex crimes compared to those for other offences and for jurors believing in "rape myths", the wrongful belief that an victim's actions were party responsible for the attack.

"The Victims, Witnesses, and Justice Reform (Scotland) Bill includes proposals for a time-limited pilot of judge-only rape trials," Mr Yousaf told Holyrood.

"The response by the senators of the College of Justice clearly shows that they have split views on the proposal. We know that organisations including Rape Crisis Scotland, Victim Support Scotland and Scottish Women’s Aid support the pilot. They, like many, are concerned by the experiences of complainers, the influence of rape myths and the lower conviction rates for rape.

"The senators’ response states that there is 'a serious problem with what happens in a jury trials for rape' cases." 

Ms Grahame shot back.

"I, too, have read the submission from the senators, both those in favour and those against. I am not quoting, but I will paraphrase it," she said.

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"The evidential difficulty that most alleged victims and the accused were in a relationship, sometimes even after the alleged crime, may be an influence on the low conviction rate, no matter what we do. The right to a fair trial under the European convention on human rights, as far as that may affect the accused, is embedded in the Scotland Act 1998.

"Crucially, the Government is, I understand, to assess the efficacy of the pilot. For me, that trespasses on the principle of the separation of powers between the legislature and the judiciary, which is an extremely serious issue. Will the First Minister confirm that there will be robust scrutiny of the proposal and that his Government has an open mind and is reflecting on those concerns, which are indeed my concerns?"

Mr Yousaf replied: "Yes. Of course we will be open minded in our consideration of the legislation. That is why the committee stage of the bill—the evidence-gathering stage—is such a crucial part of the legislative process. It allows us to hear quite robustly, and often quite powerfully, the various arguments being put forward."

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He said that the recommendation for a time-limited pilot of juryless trials came from Lady Dorrian, Scotland's second most senior judge and one who "commands wide respect right across the political spectrum". 

The First Minister added: "It is therefore important that we give that weight, as we also give weight to those voices that have expressed concern—not just in the judiciary but, as we know, many members of the legal profession, too. We will of course give that weight. We will also give the voice of victims and survivors weight in this decision and the passage of the bill.

"We need to improve the experience of rape complainers. I think that we all absolutely accept that. I think that we would all also accept that rape myths do exist within juries. I end with a quote from Rape Crisis Scotland that has stayed with me since my days as justice secretary, and to this very day. It said: 'Many survivors ... describe the process of going to court as more traumatic than the rape itself”. That is an unacceptable position in any justice system, let alone in ours."

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Ivan McKee, the SNP for Glasgow Provan, also pressed Mr Yousaf on the same issue referring to work by an academic who suggested that before suggesting "anything as drastic" as juryless trials alternatives should be considered.

"The case for juryless trials in rape cases often cites the work undertaken by Professor Fiona Leverick and her 2020 report on juries and rape myths. However, that report concludes by stating: 'Before suggesting anything as drastic as removing juries from criminal trials, however, it is worth considering whether the answer might lie in addressing problematic attitudes via juror education”.

"The report argues that that is the way forward before more radical measures are considered”."

Mr McKee asked the the First Minister if he agreed.

"I do not think that it is a case of either/or. It is absolutely acceptable to explore both. It is incumbent on us in government to provide education and try to tackle rape myths in society more generally, but also to consider the pilot," he said.

"Ivan McKee is right to reference what is an excellent piece of work—the most comprehensive jury research undertaken, I think, in the entire UK—by Professor Fiona Leverick, James Chalmers and others. 

"I will be happy to correct the record if I am wrong, but my understanding is that Professor Leverick supports the proposal for a pilot. I welcome the steps that the judiciary has taken to improve jury education. I highlight the comments from the senators on the testing of rape myth directions with juries this year."

However, Mr Yousaf insisted the option of juryless trials should be considered.

The issue was also raised by Russell Findlay, the Conservative MSP and the party's spokesman on justice who referred to plans by lawyers to boycott the juryless trials pilot scheme.

The wide-ranging proposals in the Victims, Witnesses and Justice Reform (Scotland) Bill include abolishing the not proven verdict, reducing the size of juries from 15 to 12, establishing a victims' and witnesses' commissioner and setting up a pilot scheme to try serious sexual offence cases by a judge without a jury.

According to Scottish Government figures for 2020-21, cases of rape and attempted rape last year had the highest acquittal rate in Scotland in line with previous years, with 48% or 73 people of the 152 proceeded against acquitted who had faced those charges.

The highest rate of acquittals for non-sexual crimes was for 13% of cases of homicide, while attempted murder and serious assault had an acquittal rate of 11%.

However, Ms Constance insisted the reforms were not about increasing conviction rates.